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AHI's Benefit Alert provides some useful information on The Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART) Act. The Act provides benefits preferences to employees who are in the National Guard and Reserves. It may also impact 401(k) plans and health flexible spending accounts (FSAs).

Here are some of the HEART Act's highlights:

The HEART Act supplements [USERRA and the tax code].

Make-up contributions. Employees returning from military service must be allowed to contribute pre-tax make-up contributions into their 401(k) accounts. Special rules also apply to employer matching contributions and employee after-tax contributions. Under the HEART Act, for years beginning after December 31, 2008, military differential pay — the difference between employees' regular pay and military pay — must be treated as wages for these pre-tax make-up contributions, employer matching contributions, and employees' after-tax contributions . . . .

Distributions on account of severance of employment. Normally, employees can't take in-service distributions from their 401(k) plans. Under the HEART Act, employees who are called to active military service for a period exceeding 30 days are considered severed from employment. Employees, therefore, may receive distributions of their pre-tax amounts . . . .

Qualified reservist distributions. The 2006 Pension Protection Act allowed employees who are called to active military service for 180 days or longer, or for an indefinite time, to take penalty-free qualified reservist distributions from their 401(k) plans. The distributions must be made during the period that begins on the date employees receive their orders or call to duty and ends at the close of their active military service . . . . The HEART Act makes this provision permanent.

Survivor benefits and disability retirement benefits. The HEART Act adds new mandatory tax qualification requirements for 401(k) and other plans. Under the new requirement, plans can't discriminate in paying survivor benefits. If, for example, a plan accelerates vesting, ancillary life insurance benefits, or other survivor benefits that are payable upon an employee's death, those same benefits must be available to survivors when employees die during military service.

Many scholars have criticized the harshness of the employment at-will presumption, which allows an employer to terminate an employee for good reason, bad reason, or no reason at all. Other scholars defend at-will employment and criticize the just cause standard. This Article does not take sides in this debate; but instead, attempts to bridge the gap between the two by proposing a compromise statute, which I call the Employment Termination Equity Act (ETEA).

Under ETEA, employers would remain free to terminate without having the difficult burden of proving just cause. However, certain enumerated reasons for termination would be unlawful. In determining which termination decisions should warrant protection, my goal was two-fold: (1) to make unlawful egregious termination decisions that have previously been unremedied despite the many exceptions to at-will employment and (2) to provide some overlap protection with current employment statutes by using a procedural process that will be more easily accessible by employees. Yet, in the spirit of true compromise, ETEA will provide fewer types of remedies than other employment statutes or common law claims, and will force plaintiffs to choose between suit under this proposed termination statute and other statutory remedies. As with any compromise, lines had to be drawn and line-drawing never satisfies everyone. My goal in this article is to convince the reader to view my line drawing optimistically - as a necessary means of bridging the gap between at-will employment and just cause.

I am an ardent supporter of a default just cause rule which employers can contact around (as the least cost avoider) if they want employment-at-will. Therefore, I am skeptical of attempts to keep employment at will around in any form or to circumscribe the already limited remedies that employees have in the workplace. All that being said, there needs to be a change in the fundamental employment termination laws in this country and I look forward to reading Nicole's piece for new ideas in this regard.

Media accounts typically portray African Americans and Latino immigrants as engaged in a pitched battle for jobs. Conventional wisdom suggests that the source of tension between these groups is labor competition or the racial prejudice of employers. While these explanations offer useful insights, they do not fully explain the intensity and longevity of the conflict. Nor has relevant legal scholarship offered a sufficient theoretical lens through which this conflict can be viewed. In the absence of such a theory, opportunities for solidarity building are lost and normative solutions in the context of immigration and anti-discrimination law reform are unsatisfying.

This Article advances a new approach to understanding the relationship between work and citizenship that comes out of research on African American and Latino immigrant low-wage workers. In it, we critique existing theories of the link between work and citizenship for failing to attend to the realities of immigration, job differentiation within the universe of low-wage work, and the extent to which a group's race, formal citizenship status, and history affect its relationship to work. This Article fills this gap by arguing that citizenship - defined broadly as 'belonging' in the broader community - provides an additional lens for understanding interactions between African American and Latino immigrant low-wage workers. This nuanced, context-based theory of citizenship, which is grounded in insights from Critical Race Theory, immigration scholarship, and constitutional law, reveals profound differences in the way that African Americans and Latino immigrant workers who appear to be similarly situated in the low-wage context conceive of and experience work, providing a more accurate window into the conflict between them. It also highlights important similarities and convergences in the paths to the workplace taken by these groups, pointing to unique opportunities for increased solidarity between low-wage African American and Latino immigrant workers on the job.

Fascinating piece of scholarship on an issue that is front and center in this year's national election. Check it out.

NPR is reporting this morning that James Byrnes, the second-highest official at the Office of Special Counsel has resigned. Although Byrnes did not say so in his official announcement, the resignation is said to be in protest the actions of Special Counsel Scott Bloch, some of which we've posted on before (see also here). More signs that the OSC has become completely dysfunctional under Bloch. You'd think that and an FBI raid would be enough to see him go, but apparently that's not the case.

This Article argues that New York's convenience of the employer doctrine is unconstitutional as a matter of law and ill-advised as a matter of tax policy.

For Commerce Clauses purposes, interstate travel is a form of interstate commerce. In using the concept of employer convenience to tax a nonresident employee for days the employee works at his out-of-state home, New York levies unapportioned income taxation in violation of the dormant Commerce Clause. In Due Process terms, the extraterritorial taxation caused by the employer convenience doctrine unconstitutionally projects New York's taxing authority beyond New York's borders to tax income earned in the employee's state of residence.

Moreover, New York's employer convenience rule is misguided as a matter of tax policy as the rule drives jobs, firms, and taxpayers from New York.

Not exactly a bread and butter employment issue, but one that certainly impacts workplaces in New York. Thanks for Ed, a tax expert in his own right, for bringing these issues to our attention.

A business coalition has launched a new ad criticizing DFL Senate candidate Al Franken for supporting legislation that would make it easier for workers to start unions.

The ad by the Coalition for a Democratic Workplace takes aim at the Employee Free Choice Act, which would certify a union as soon as a majority of workers at a plant signed cards authorizing it. Current law allows employers to demand a secret ballot election when their workers seek to organize a union.

The ad features actor Vince Curatola, who played the mob boss Johnny (Sack) Sacramoni on "The Sopranos," staying in character and praising "My pal Al." Then an announcer urges people to call Franken and tell him "he's wrong to end worker privacy."

I think the Franken campaign spokesperson rightfully points out that EFCA legislation would protect employee bargaining and privacy rights by saving them from the immense amount of employer intimidation that goes on during a normal organizing campaign. I have written about such tactics in my recent article on employer captive audience meetings.

The Second Circuit joins three other federal appeals courts that have ruled in recent years that cash balance plans do not reduce the rate of an employee's benefit accrual because of the attainment of age, and as such do not violate ERISA Section 204(b)(1)(H)(i). The long-awaited decision by the appeals court resolves a division among federal trial court judges under the jurisdiction of the Second Circuit who in recent years have come to different conclusions over whether cash balance plans violate ERISA's anti-age discrimination provisions. At least four judges from trial courts in the Second Circuit have found that cash balance plans are age discriminatory, but the majority of federal judges in that circuit have found that cash balance plans are not age-biased.

I think the decision by the 2nd Circuit, which is consistent with the findings of other circuit courts to decide this issue make Supreme Court review of this issue less likely. Of course, all of that could change is the case is challenged en banc.

Relying on the recent Supreme Court decision in Engquist (blogged about previously here and here) that held that there is no class of one equal protection claim for public employees, the Second Circuit has reversed a lower court decision that had banned a public university in Connecticut from forcing a professor to undergo psychological testing,

The case is Appel v. Spiridon, 2d Cir., No. 06-5723 (2nd Cir. July 2, 2008). Under Justice Stevens' analysis in dissent in Engquist, a rational basis test would have been applied to the professor's equal protection complaint and if there was evidence that the psychological testing was retaliatory or based on bad motives, the employee could have won her case.

Instead, there is no such claim for public employees, period. There is a blanket exception from the general applicability of the equal protection clause.

Frankly, it makes no sense and this case points out the holes it creates for public employees seeking to vindicate their constitutional rights.

In what might be a trend beginning in state legislatures, Missouri has banned the right of employers to implant RFID chips in their workers (effective Aug. 28) as a condition of employment. Three other states currently have similar laws: California, North Dakota, and Wisconsin.

Two thoughts: my move from Mississippi to Wisconsin is already paying dividends and second, I'm sure by anti-federalist co-blogger Jeff Hirsch is wondering why we just don't say under a federal "just cause" standard firing an employee for refusing to have chip implanted in their person is never a good reason for firing an employee.

Question for Jeff and others: is this technology becomes less invasive and can be monitored by the individual for abuses more easily, is it not better to specifically spell out what you are prohibiting and not rely on a vague "just cause" standard?

DIRECT "SHUNS." The U.S. District Court for the Western District of Texas ruled that fiduciaries of the Dell Inc. 401(k) Plan did not violate their duties under the Employee Retirement Income Security Act (ERISA) by allowing more than 50% of the plan's assets to be invested in Dell company stock. In granting Dell's motion to dismiss the case, the court noted that the Dell plan is an eligible individual account plan (EIAP) and therefore exempt from ERISA's diversification requirements.

The District Court also agreed with Dell that since participants in the plan directed their own investments, the plan cannot create any duty to diversify assets by overriding participant investment choices - and said that if the plan became overinvested in Dell stock, this was the result of participant direction, not Dell or the plan fiduciaries.

The court decision appears correct, but it begs an important question: what role should employers take in providing investment education to their employees? This is a trickier question than it first might appear because although "investment education" is not fiduciary activity, "investment advice" is, and the line between the two can be murky.

Query: should ERISA be amended to require employers to give employees investment education about the dangers of not diversifying and investing too much in company stock? Or should it be amended to put a limit on the percentage that can be invested in company stock as is currently the case in the defined benefit plan context?

Finally, although the company can permit more than 50% of the plan assets to be in company stock under current law, there is a breach of fiduciary duty under 404(c) and its regulations if the employer does not provide numerous enough, diverse investment vehicles for its employees to invest in.

This article addresses the question whether sex workers who face persecution because they are sex workers may be able to claim refugee status in Australia on the basis that they fear persecution as members of a particular social group. The author argues that they ought to be able to make such a claim. This is based either on the work in sex work, on the ground of the current Australian authorities on occupation as a form of particular social group under the Convention Relating to the Status of Refugees, or the sex in sex work, by analogy with lesbian and gay claims to refugee status. The author concludes, however, that such claims are unlikely to be successful until sex workers' rights are better recognised and protected under international and domestic law.

Clearly a nominee for best law review title of the year, but also an article that raises some difficult questions at the intersection of employment and immigration law.

Union representation elections are often
conducted in an environment of intimidation and coercion, denying
employees the freedom to choose whether they wish to be represented by
a union. In the United States, both unions and employers have engaged
in unfair labor practices in pursuit of their own agendas - misleading
employees about the consequences of choosing union representation and,
in extreme cases, threatening employees with physical harm. This Policy
Essay by Senator Arlen Specter and Eric Nguyen argues that current
federal labor law fails to address the problem of unfair labor
practices in union representation elections. It discusses how current
law provides only toothless remedies that do not deter abuses, and how
implementation of these limited remedies by the National Labor
Relations Board is plagued by delays. The Essay then surveys the
experiences of Canada, New Zealand, and the United Kingdom to
illuminate how aspects of foreign labor laws could reduce procedural
delays, lead to more responsive unions, and encourage voluntary
negotiation between employers and unions if implemented in the United
States. The Policy Essay concludes by posing questions that Congress
should address while developing new legislation to secure employees'
right to choose union representation.

It's nice to see that a sitting Senator is seriously thinking about NLRA reform, although if history is a guide, the prospects of change are still dim. Check out the end of the essay, which has a list of interesting questions to help shape future reforms. Of course, for the NLRB to provide good answers to these questions, one additional suggestion would be to eliminate the ban against its ability to conduct economic analysis.

The Sixth Circuit has now created a genuine split in the circuits about how to analyze a claim brought under Title VII's so-called "mixed-motive" section, 42 U.S.C. § 2000e-2(m). It becomes the first circuit to publish a decision fully abandoning the use of the McDonnell Douglas/Burdine framework at the summary judgment stage in mixed-motive cases. The panel majority also takes a step away from pure deference to an employer's "business judgment" in the single-motive context . . . .

The employee presented two claims -- failure to promote, and the downgrading of his performance evaluation (leading to reduced future pay raises). The employee in the case was an African-American sales representative for the company, who enjoyed six successful years with the company before being assigned to a supervisor (Tim Phillips). Phillips (according to the summary judgment record) gave White a lot of racial flak . . . .

White claimed that Phillips deliberately downgraded his performance evaluation to "Meets Minus" in 2004. This claim, White presented under the mixed-motive section, 42 U.S.C. § 2000e-2(m), added-on by the 1991 Civil Rights Act to supplant the prior Price Waterhouse standard. Until the Supreme Court decided Desert Palace -- which eliminated the "direct evidence" requirement that most courts had grafted onto this this provision -- the mixed-motive section remained kind of an orphan. Even in the wake of Desert Palace, the federal courts of appeal have continued to apply the McDonnell Douglas/Burdine framework at the summary judgment stage in mixed-motive cases. This section has not received extended consideration as a separate method of evaluating claims of disparate treatment since Desert Palace, save for the Fifth Circuit's decision Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004), applying a modification of McDonnell Douglas.

Reviewing White's performance-evaluation claim, though, the panel (with a majority decision and partial concurrence by Judge Gilman) held that Congress meant for courts to apply a different standard to review claims under this section:

"This case now presents us with the opportunity to finally clarify how Title VII mixed-motive claims should be analyzed at the summary judgment stage. We do so by holding that the McDonnell Douglas/Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims. We likewise hold that to survive a defendant's motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) 'race, color, religion, sex, or national origin was a motivating factor' for the defendant's adverse employment action. 42 U.S.C. § 2000e-2(m) (emphasis added). . . . [W]e direct that this summary judgment analysis just described, rather than the McDonnell Douglas/Burdine burden-shifting framework, be applied in all Title VII mixed-motive cases regardless of the type of proof presented by the plaintiff."

Under this modified standard, the court permitted the claim to go forward.

This could mean a split in the circuits and potential review of this important Title VII question. I also agree with Paul M. that we are likely to see, "1) a huge pile-on by the managment bar to get this case heard en banc,
followed (if the first gambit does not succeed) by (2) the mother of
all certiorari petitions to the U.S. Supreme Court."

Tracking the field as it is practiced by employment lawyers on both plaintiff and defense sides, this book enables a one-semester treatment of the full range of employment discrimination laws as well as the core subjects of an employment law offering.

The World Bank's Doing Business report has become one of the most influential, yet the most controversial instruments which affect labour law reforms around the world. This study discusses the controversy between the World Bank's and the International Labour Organization's approaches towards flexibility of employment regulation with special emphasis on fixed-term contracts.

The ILO employment regulation targets are balanced to harmonize the interests of all three stakeholders - employers, employees and governments, while the Doing Business targets clearly favour the interests of employers. What is more important, the Doing Business targets on fixed-term contracts and dismissals seem to contradict the international labour standards as reflected in the ILO conventions and recommendations.

Although both organizations ultimately have the same goal - to help economies and people prosper, their visions of the proper mixture of flexibility and security are clearly different. It is hardly possible to expect that Doing Business reports would lobby for the interests of employees because this will not necessarily stimulate more favourable businesses environments. However, as this study suggests, there are ways to reduce tensions between these two visions.

This is a timely piece as international labor relations has been coming to the fore in recent months. Both the World Bank and ILO approaches deserve careful consideration before countries use either as a model.

BNA's Daily Labor Report (subscription required) described a report by economist James Sherk (Heritage Foundation) that builds on some of our recent posts on wage and employment data. According to the DLR:

Contrary to the findings of
economists and others who point to a declining labor market, falling
wages, and decreased access to benefits in recent years, earnings
actually have increased at all income levels, jobs are still available,
and access to health care and other benefits remains at a similar level
to that of the 1990s, according to a Heritage Foundation report.

In the report, A Good Job Is Not So Hard To Find,released June 17, researcher James Sherk argues that past analyses of
the labor market have not been accurate because, in part, they have not
correctly accounted for the effect of immigration since 1980. In
addition, Sherk said, job creation in the past several decades has been
in high-skill areas, as low-skill jobs have declined--a shift which he
said benefits American workers. Access to employee benefits, such as
health care and pension plans, also has not declined significantly, as
others have claimed, Sherk argued. . . .

Sherk concluded the
report by arguing that "good jobs are at least as common today as they
have been in the past," because health insurance and pensions "are as
available as they were in the mid-1990s" and because "jobs paying high
wages in fields requiring more education are more available today than
they were a generation ago, while low-wage, low-skill jobs are
decreasing." He recommended that "Congress should not take radical
steps to address a nonexistent crisis," such as "nationalizing health
care."

I edited out most of the details, so check the link if you're interested. It's certainly worth remembering that reports on average wages, no matter how bad they look, only represent an average and that many workers face very different employment conditions. A lot of workers--in particular, the higher educated ones--are doing much better than the average, especially when benefits are taken into account (although the rising cost of health insurance may make a decent portion of compensation gains invisible to most workers). Therefore, what is disturbing about this report to me is illustrated by the final recommendation; in essence, because most workers are doing OK, we shouldn't do anything to help the worse-off workers (many of whom are foreigners), who aren't doing nearly as well. In addition to being callous, it ignores the negative externalities that poverty and lack of health care can cause for the rest of society.

The Seventh Circuit recently held in an interesting case, United Steel [Union] v. TriMas Corp., that questions about a neutrality agreement's coverage of certain plants must be determined by an arbitrator, not a court. There were two main issues. The first is whether the scope of the agreement itself was included in the broad arbitration clause. Not surprisingly given the wide deference given to arbitration clauses (not to mention the plain language), the court held that the scope of an agreement was part of the agreement, including for purposes of arbitration.

The second issue was more unusal and involved the employer's argument that the parties has later agreed to limit the scope of the neutrality agreement--an allegation that the union disputed. The court rejected the employer's attempt, holding that "[o]ne does not remove issues from arbitration simply by changing the scope of the underlying agreement." In other words, even if the parties had removed some plants from the neutrality agreement's coverage, the agreement was still covered by the arbitration clause. Thus, any questions about the change in scope is still arbitrable.

Another page in the saga over the NLRA's application to Indian casinos has turned (for past posts see here and here). In an expected move, the NLRB has certified the UAW as the representative of dealers at the Foxwoods casino. Although the interested issues from a legal standpoint is the Indian sovereignty issues, the challenges in this case revolved around alleged election misconduct, which both the ALJ and NLRB found to be insufficient to overturn the vote in favor of the union. As reported by BNA's Daily Labor Report (subscription required):

The National Labor Relations Board June 30 certified the United Auto Workers as the exclusive bargaining representative of approximately 2,629 dealers at the Foxwoods Resort Casino on an Indian reservation in Mashantucket, Conn. (Foxwoods Resort Casino, 352 N.L.R.B. No. 92, 6/30/08 [released 7/3/08]).

Dealers at the casino Nov. 24 voted 1,289 to 852 to be represented by UAW, with 36 challenged ballots, in an NLRB-supervised election. The Mashantucket Pequot Tribal Nation, which owns the casino, filed 12 objections with NLRB alleging that NLRB does not have jurisdiction over the casino and that the union interfered with the election and affected its results in a number of ways. . . .

After the election, the tribal nation claimed that UAW affected the election results by recording employees' names, badge numbers, and votes; by making an election speech 24 hours before the election; and by harassing, threatening, and intimidating employees. The tribe also objected that the ballots were in English only, that the board's election notices were in English and traditional Chinese only, and that the ballot wording did not comply with board policy in identifying the union.

But Chairman Peter C. Schaumber and Member Wilma B. Liebman, agreeing with an administrative law judge's recommendation, found that neither UAW nor the NLRB regional director engaged in any objectionable conduct that warranted setting aside the election. . . .

Foxwoods in a July 3 statement . . . said it plans to appeal all aspects of the case.

The article gives more background on the sovereign immunity claim, which is going to be the ultimate headline for this case. The next question is which circuit will get the appeal, so stay tuned.

We've posted before on the reaction to the federal government's recent increase (relatively speaking) in enforcing ICRA's prohibition against hiring undocumented workers, usually focusing on the effect on employees. Many employers, however, rely substantially on such workers, so it's no surprise that they're pushing back. As described in a recent New York Times piece, employer groups are lobbying states to relax some recently enacted measures cracking down on undocumented workers:

Under pressure from the toughest crackdown on illegal immigration in two decades, employers across the country are fighting back in state legislatures, the federal courts and city halls. Business groups have resisted measures that would revoke the
licenses of employers of illegal immigrants. They are proposing
alternatives that would revise federal rules for verifying the identity
documents of new hires and would expand programs to bring legal
immigrant laborers. . . .

Employers in Arizona were stung by a law passed last year by the
Republican-controlled Legislature that revokes the licenses of
businesses caught twice with illegal immigrants. They won approval in
this year’s session of a narrowing of that law making clear that it did
not apply to workers hired before this year. Last week, an Arizona employers’ group submitted more than 284,000
signatures — far more than needed — for a November ballot initiative
that would make the 2007 law even friendlier to employers.

Also in recent months, immigration bills were defeated in Indiana
and Kentucky — states where control of the legislatures is split
between Democrats and Republicans — due in part to warnings from
business groups that the measures could hurt the economy. . . .

While much of the employer activity has been at the grass-roots
level, a national federation has been created to bring together the
local and state business groups that have sprung up over the last year.“These employers are now starting to realize that nobody is in a
better position than they are to make the case that they do need the
workers and they do want to be on the right side of the law,” said
Tamar Jacoby, president of the new federation, ImmigrationWorks USA.

After years of laissez-faire enforcement, federal immigration agents
have been conducting raids at a brisk pace, with 4,940 arrests in
workplaces last year. Although immigration has long been a federal
issue, more than 175 bills were introduced in states this year
concerning the employment of immigrants, according to the National
Conference of State Legislatures.

The article describes efforts in numerous states, so it's worth a full read. Expect many more developments in this area unless Congress actually gets some comprehensive immigration measure through.